Price v. Philip Morris, Inc. , 2015 IL 117687 ( 2015 )

2015 IL 117687
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 117687)
SHARON PRICE et al., Appellees, v. PHILIP MORRIS, INC., Appellant.
Opinion filed November 4, 2015.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Karmeier and Theis concurred in the
judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Kilbride.
Justice Thomas took no part in the decision.
OPINION
¶1 The plaintiffs, Sharon Price and Michael Fruth, as individuals and on behalf of
a class of similarly situated individuals, filed a petition in the circuit court of
Madison County seeking relief from judgment pursuant to section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). The circuit court
denied the petition on the merits and the appellate court reversed (2014 IL App
(5th) 130017).
¶2 Because plaintiffs’ petition sought vacatur of the judgment rendered by this
court in Price v. Philip Morris, Inc., 219 Ill. 2d 182 (2005), we hold that both the
circuit court, and the appellate court on review of the circuit court’s judgment, erred
in considering the merits of plaintiffs’ petition. Section 2-1401 does not authorize
the circuit court to vacate the judgment of a reviewing court. Instead, a litigant
seeking to vacate the judgment of a reviewing court after the rehearing period has
expired and the mandate has issued, must file a motion to recall the mandate in the
reviewing court which rendered the contested judgment. We therefore vacate the
judgments of the lower courts and dismiss this cause of action without prejudice to
plaintiffs to file a motion to recall the mandate in this court. We express no opinion
on the merits of such a motion, should one be filed at a future date.
¶3 BACKGROUND
¶4 In February, 2000, plaintiffs filed a class action lawsuit in the circuit court of
Madison County against the defendant, Philip Morris, Inc. The suit alleged that
defendant’s use of the terms “lights” and “lowered tar and nicotine” on the
packaging and in the marketing of its Marlboro Lights and Cambridge Lights
cigarettes (Lights) violated the Consumer Fraud and Deceptive Business Practices
Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)), and the Uniform
Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 1998)). Plaintiffs
alleged that, “ ‘when smoked under actual conditions’ ” by consumers, Lights
failed to provide “ ‘lowered tar and nicotine’ ” as compared to conventional
cigarettes and, thus, the descriptors used by defendant were deceptive. Price, 219
Ill. 2d at 209-11. Plaintiffs did not seek damages for personal injuries, if any,
resulting from their consumption of Lights. Instead, they sought only economic
damages, based on their contention that they did not receive what defendant told
them they would receive when they purchased Lights, i.e., a cigarette that delivered
less tar and nicotine than conventional cigarettes and that was, therefore, safer. Id.
at 209.
¶5 Defendant raised numerous defenses in response to plaintiffs’ complaint.
Relevant here, defendant argued that plaintiffs’ complaint was barred by section
10b(1) of the Consumer Fraud Act (815 ILCS 505/10b(1) (West 1998)). This
provision states that nothing in the Consumer Fraud Act shall apply to “[a]ctions or
transactions specifically authorized by laws administered by any regulatory body or
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officer acting under statutory authority of this State or the United States.” Id.
Relying on various exhibits as well as expert testimony, defendant asserted that its
use of the terms “light” and “lowered tar and nicotine” complied with policies
promulgated by the Federal Trade Commission (FTC) and, thus, plaintiffs’
complaint should not go forward.
¶6 The circuit court rejected defendant’s proffered defenses, including its defense
based on section 10b(1). The court certified a class consisting of all purchasers of
Lights in Illinois from 1971 to 2001, approximately 1.14 million people. On March
21, 2003, following a bench trial, the circuit court rendered judgment in favor of
plaintiffs and awarded compensatory and punitive damages totalling $10.1 billion.
¶7 This court granted direct review under Supreme Court Rule 302(b) (Ill. S. Ct. R.
302(b) (eff. Oct. 4, 2011)), and, on December 15, 2005, reversed the judgment of
the circuit court. In its opinion, this court concluded that the FTC had “specifically
authorized” defendant’s use of the descriptors “light” and “lowered tar and
nicotine,” thereby barring plaintiffs’ complaint. In reaching this conclusion, the
court first explained that “the FTC’s informal regulatory activity, including the use
of consent orders, comes within the scope of section 10b(1)’s requirement that the
specific authorization be made ‘by laws administered by’ a state or federal
regulatory body.” Price, 219 Ill. 2d at 258. This conclusion was consistent, the
court stated, with the testimony of defendant’s expert witness, Dr. John Peterman, a
former FTC bureau director, who testified that “the FTC uses consent orders to
provide guidance to the entire cigarette industry.” Id.
¶8 This court then found that, in a 1971 consent order, In re American Brands,
Inc., 79 F.T.C. 255 (1971):
“the FTC could, and did, specifically authorize all United States tobacco
companies to utilize the words ‘low,’ ‘lower,’ ‘reduced’ or like qualifying
terms, such as ‘light,’ so long as the descriptive terms are accompanied by a
clear and conspicuous disclosure of the ‘tar’ and nicotine content in milligrams
of the smoke produced by the advertised cigarette.” Price, 219 Ill. 2d at 265.
¶9 The court also found that the FTC reiterated this authorization in a 1995 consent
order, In re American Tobacco Co., 119 F.T.C. 3 (1995). This order, the court
stated, “forbade the representation of tar ratings as ‘a numerical multiple, fraction
or ratio of the tar or nicotine ratings of any other brand,’ but specifically allowed
the ‘express or implied representation’ that a cigarette is ‘ “low,” “lower,” or
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“lowest” in tar and/or nicotine.’ ” Price, 219 Ill. 2d at 265-66. Accordingly, this
court held that plaintiffs’ claim was “barred by section 10b(1) of the Consumer
Fraud Act.” Id. at 266.
¶ 10 Although this ruling resolved the appeal, the court also noted that it had
“reservations” about the “existence of individual issues” concerning deception,
causation and injury “that might make class certification inappropriate,” as well as
“grave reservations” about plaintiffs’ theory of damages in the case. Id. at 268-71.
The court did not, however, rule on these issues. The court concluded its opinion by
stating that the judgment of the circuit court was reversed and that the cause was
remanded “with instructions to dismiss pursuant to section 10b(1) of the Consumer
Fraud Act.” Id. at 274.
¶ 11 Justice Karmeier, joined by Justice Fitzgerald, specially concurred, finding that
plaintiffs’ consumer fraud claim failed for the “additional and more basic reason”
that plaintiffs had “failed to establish that they sustained actual damages.” Id. at 275
(Karmeier, J., specially concurring, joined by Fitzgerald, J.). Justice Freeman and
Justice Kilbride each dissented from the judgment of the court. The dissenting
justices rejected the court’s conclusion that plaintiffs’ complaint was barred by
section 10b(1) as well as the special concurrence’s conclusion that plaintiffs had
failed to establish actual damages. Id. at 285-337.
¶ 12 The court stayed its mandate while plaintiffs petitioned the United States
Supreme Court for writ of certiorari. The mandate was issued by this court on
December 5, 2006, after certiorari was denied. On December 18, 2006, the circuit
court dismissed plaintiffs’ complaint with prejudice in accordance with this court’s
mandate.
¶ 13 On December 18, 2008, plaintiffs commenced the present action by filing a
petition for relief from judgment under section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2012)), in the circuit court of Madison
County. As ultimately amended, plaintiffs’ petition focused primarily on an amicus
curiae brief that had been filed by the FTC in the United States Supreme Court
case, Altria Group, Inc. v. Good, 555 U.S. 70 (2008). Plaintiffs alleged that, in this
brief, which had been filed subsequent to the dismissal order in Price, the FTC
indicated that it had not authorized cigarette companies to use descriptors such as
“light” or “lowered tar and nicotine.” Plaintiffs contended that the FTC statements
in the brief, as well as other actions taken by the FTC subsequent to Price,
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constituted “new evidence” that merited relief from judgment under section
2-1401. Plaintiffs asserted in their petition that they had:
“a meritorious claim because the newly-available evidence discussed above
contradicts the factual record that led to the conclusion that section 10(b)(1) of
the Illinois Consumer Fraud Act exempted Philip Morris’ conduct from
liability. Because that conclusion was pivotal and necessary to the Supreme
Court’s reversal of the March 21, 2003 judgment in this case, Plaintiffs, who
prevailed on their claims in the trial court, have a meritorious claim.”
¶ 14 Plaintiffs’ petition concluded by stating that, “[a]s the final judgment was
predicated on an inaccurate interpretation of the historical record, the
newly-available evidence would have prevented entry of the judgment.” Plaintiffs
therefore requested the circuit court “to vacate the final judgment in this case.”
¶ 15 The circuit court dismissed plaintiffs’ section 2-1401 petition, finding that the
petition had not been filed within the time limits required under that statute (735
ILCS 5/2-1401(c) (West 2006)). The appellate court reversed that determination
and remanded the matter to the circuit court to address the merits of plaintiffs’
petition. Price v. Philip Morris, Inc., No. 5-09-0089 (2011) (unpublished order
under Illinois Supreme Court Rule 23). This court denied defendant’s petition for
leave to appeal. Price v. Philip Morris Inc., No. 112067 (Ill. Sept. 30, 2011).
¶ 16 On remand, the circuit court explained that, for relief to be granted under
section 2-1401, plaintiffs had to show that it was more probably true than not that
defendant’s section 10b(1) defense would have failed if the FTC position had been
presented in the underlying case. The circuit court then stated:
“this case is in a unique procedural posture as Plaintiffs in fact prevailed at the
trial level. Defendant only prevailed, in its affirmative defense, on direct appeal
to the Illinois Supreme Court. Thus this Court must determine whether it is
more probably true than not that, had the FTC position been presented in the
record on appeal, the Illinois Supreme Court would not have ruled in
Defendant’s favor on its affirmative defense that Plaintiffs’ claim was exempt
pursuant to Section 10b(1) of the [Consumer Fraud Act].”
After reviewing the parties’ arguments, the circuit court concluded that “it appears
probable that, had the FTC position been known to the Illinois Supreme Court, the
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court would have given deference to the FTC and not have found in Defendant’s
favor on the Section 10b(1) exemption.”
¶ 17 However, the circuit court then went on to hold that, because this court in Price
had expressed “grave reservations” regarding plaintiffs’ theory of damages, and
because the special concurrence had expressly found for defendant on the issue of
damages, it was “likely” defendant would have prevailed in the case even if the
section 10b(1) defense had not succeeded. The circuit court therefore denied
plaintiffs’ section 2-1401 petition on the merits, holding that plaintiffs had failed to
show that it was “more probably true than not” that Price would have been decided
differently, even given the information in plaintiffs’ petition.
¶ 18 The appellate court again reversed. 2014 IL App (5th) 130017. The appellate
court concluded that the only issue that was properly before it was whether the
statements made by the FTC in 2008 would have altered this court’s resolution of
the section 10b(1) issue, and that any inquiry into what this court would have
decided had it addressed the issue of damages was impermissibly speculative. See
id. ¶ 50. Describing the FTC amicus brief as “contain[ing] direct statements that the
FTC never intended to authorize use of the terms” used by defendant (emphases in
original) (id. ¶ 55),” the appellate court concluded it was “easy to see” how this
court’s analysis “would have been changed” (id.).
¶ 19 After addressing the remaining elements of the section 2-1401 petition, the
appellate court held that plaintiffs were entitled to relief. Noting that “the unique
procedural history” of the case left it with little guidance in resolving the question
of what relief could be granted, the appellate court ordered the circuit court to
restore the parties to the status quo that existed before defendant filed its appeal
from the original circuit court judgment in plaintiffs’ favor. This had the effect of
reinstating the original $10.1 billion judgment that had been vacated by this court in
Price. Id. ¶¶ 59-60.
¶ 20 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff.
July 1, 2013).
¶ 21 ANALYSIS
¶ 22 At issue in this case is whether the appellate court correctly reversed the
judgment of the circuit court denying plaintiffs’ petition brought pursuant to
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section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)).
Section 2-1401 of the Code of Civil Procedure creates a comprehensive statutory
procedure for obtaining relief from final orders and judgments more than 30 days
after their entry. Warren County Soil & Water Conservation District v. Walters,
2015 IL 117783, ¶ 31. The statute abolishes the common-law writs that once
provided the means to collaterally challenge final judgments and replaces them
with a single, postjudgment petition. Section 2-1401(a) provides:
“(a) Relief from final orders and judgments, after 30 days from the entry
thereof, may be had upon petition as provided in this Section. Writs of error
coram nobis and coram vobis, bills of review and bills in the nature of bills of
review are abolished. All relief heretofore obtainable and the grounds for such
relief heretofore available, whether by any of the foregoing remedies or
otherwise, shall be available in every case, by proceedings hereunder,
regardless of the nature of the order or judgment from which relief is sought or
of the proceedings in which it was entered. Except as provided in Section 6 of
the Illinois Parentage Act of 1984, there shall be no distinction between actions
and other proceedings, statutory or otherwise, as to availability of relief,
grounds for relief or the relief obtainable.” 735 ILCS 5/2-1401(a) (West 2012).
¶ 23 Section 2-1401(b) requires the petition to be filed in the “same proceeding” in
which the contested order or judgment was entered, but the petition is not a
continuation of the original action. 735 ILCS 5/2-1401(b) (West 2012). Instead, the
section 2-1401 petition is an initial pleading that commences a new and separate
cause of action, subject to the usual rules of civil procedure. People v. Vincent, 226
Ill. 2d 1, 7-8 (2007). Relief under section 2-1401 is predicated on the showing of a
defense or claim that would have precluded rendition of the judgment in the
original action as well as diligence in both discovering the defense or claim and
presenting the petition. Id. The petition must be supported by affidavit or other
appropriate showing as to matters not of record and must be filed no later than two
years after the entry of the contested order or judgment. Id. at 7.
¶ 24 Defendant initially contends that both the circuit court, and the appellate court
on review of the circuit court’s judgment, erred in considering the merits of
plaintiffs’ section 2-1401 petition. Defendant maintains that plaintiffs’ petition
sought to vacate the judgment rendered by this court in Price and that the lower
courts have no authority to grant such relief.
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¶ 25 To better understand defendant’s argument, it will be helpful at the outset to
review how section 2-1401 applies when the judgment being challenged is one that
was rendered by a circuit court. When a petitioner seeks relief from the final
judgment of a circuit court under section 2-1401, the petition must be filed in the
circuit court in which the contested judgment was entered and must allege either
that the petitioner had a valid claim in the original action (if he was an unsuccessful
plaintiff) or a valid defense (if he was an unsuccessful defendant). See generally Ill.
Ann. Stat., ch. 110, ¶ 2-1401, Historical and Practice Notes, at 610-11 (Smith-Hurd
1983). If the petitioner is able to satisfy the requirements of section 2-1401, the
circuit court will then grant relief directed against its original judgment. In other
words, when a petitioner invokes section 2-1401 to obtain relief from an adverse
circuit court judgment, the petitioner is asking the circuit court to revisit the
correctness of the court’s own judgment. See, e.g., Smith v. Airoom, Inc., 114 Ill. 2d
209 (1986).
¶ 26 This is true even if the original circuit court judgment was affirmed on appeal
before the petitioner filed the section 2-1401 petition. The section 2-1401 petition is
a new action, based on matters that were not of record in the original action and that
were not considered by the appellate court. Relief, if it is granted, is premised on
the theory that these new matters would have changed the result in the original
circuit court action. Thus, the fact that a circuit court judgment has been affirmed
on appeal does not preclude the filing of a section 2-1401 petition. The section
2-1401 petitioner is still, in these circumstances, asking only that the circuit court
revisit the correctness of its own, adverse judgment. See People v. Partee, 125 Ill.
2d 24, 35 (1988) (the filing of a direct appeal does not affect the availability of
postjudgment relief from an adverse circuit court judgment); People v. Dabbs, 372
Ill. 160, 165-66 (1939) (construing section 72 of the Civil Practice Act of 1933, a
statutory predecessor to section 2-1401). See also Standard Oil Co. of California v.
United States, 429 U.S. 17 (1976) (reaching the same result under federal law).
¶ 27 In this case, however, when plaintiffs filed their section 2-1401 petition in
circuit court they did not, and could not, ask the court to revisit the correctness of its
original judgment rendered in March, 2003. Plaintiffs won in the original action in
circuit court and there was, therefore, no adverse judgment from which they needed
to obtain relief. Instead, the adverse judgment was rendered by this court, when
plaintiffs lost on direct appeal in Price. Thus, defendant asserts that the prayer in
plaintiffs’ petition that the circuit court “vacate the final judgment in this case” is,
in fact, a request by plaintiffs to the circuit court to grant relief from this court’s
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judgment. This, defendant maintains, is impermissible, because a lower court does
not have the authority to vacate the judgment of a higher court.
¶ 28 Plaintiffs respond by contending that “section 2-1401 relief is available from a
final judgment entered by or at the direction of a higher court” (emphasis added).
Plaintiffs, thus, make two arguments. First, plaintiffs contend that as a general
matter, section 2-1401 authorizes the circuit court to grant relief from a “final
judgment entered by” a reviewing court. Therefore, plaintiffs assert, the circuit
court in this case was authorized to vacate the judgment rendered by this court in
Price on December 15, 2005. Second, plaintiffs point out that, after reversing the
judgment of the circuit court, our opinion in Price remanded the cause to the circuit
court with instructions to dismiss the action. In compliance with these instructions,
an order of dismissal was entered in the circuit court on December 18, 2006.
Plaintiffs maintain that the order of dismissal may be considered distinct or
separate from this court’s judgment in Price and, even though it was “entered ***
at the direction of a higher court,” they may seek relief from that order of dismissal.
Thus, according to plaintiffs, even if section 2-1401 did not authorize the circuit
court to vacate this court’s judgment in Price, it did authorize the circuit court to
vacate the order of dismissal and relief may be granted on that basis. We address
these arguments in turn.
¶ 29 A. Section 2-1401 Does Not Authorize the Circuit Court to
Vacate the Judgment of a Reviewing Court
¶ 30 Plaintiffs’ contention that section 2-1401 authorizes the circuit court to vacate
the judgment of a higher court presents a question of statutory interpretation. When
interpreting a statute, our primary objective is to give effect to the legislature’s
intent, presuming that the legislature did not intend to create absurd, inconvenient
or unjust results. People v. Gaytan, 2015 IL 116223, ¶ 23. The best indication of
that intent is found in the statutory language, given its plain and ordinary meaning.
Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL
117418, ¶ 21. Further, in determining legislative intent, we may consider the
purpose and necessity for the law as well as the consequences that would result
from interpreting the statute in one way or another. Gaytan, 2015 IL 116223, ¶ 23.
The interpretation of a statute is a question of law that is reviewed de novo. Id.
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¶ 31 In support of their contention that the circuit court has the authority, under
section 2-1401, to vacate the adverse judgment of a reviewing court, plaintiffs point
to the language of subsection (a) of the statute. Plaintiffs emphasize that this
provision is broadly worded to provide a means of relief “in every case ***
regardless of the nature of the order or judgment from which relief is sought or of
the proceedings in which it was entered.” 735 ILCS 5/2-1401(a) (West 2012).
Plaintiffs further observe that the statute does not contain any exception for
judgments rendered by a reviewing court. Therefore, according to plaintiffs,
section 2-1401 authorizes the circuit court to vacate a judgment rendered by a
higher court. We disagree.
¶ 32 Subsection (b) of section 2-1401 states, in part, that the petition “must be filed
in the same proceeding in which the order or judgment was entered but is not a
continuation thereof.” 735 ILCS 5/2-1401(b) (West 2012). Although the term
“same proceeding” is not defined in the statute, its use by the General Assembly has
long been understood to mean that the postjudgment petition must be filed in the
same court in which the contested judgment was entered and, when possible,
assigned to the same judge who heard the original action. See, e.g., Kilbride v.
Kilbride, 64 Ill. App. 2d 355, 360-61 (1965). To fully explain why this is so, it is
necessary to review some of the history of section 2-1401.
¶ 33 The relief sought by plaintiffs under their section 2-1401 petition in this case is
that which, at common law, was available under the writ of coram nobis. In
general, the writ of coram nobis was a means of collaterally challenging a final
judgment by bringing “to the court’s attention factual matters that, if known to the
court before entry of judgment, would have precluded entry of that judgment.”
Warren County, 2015 IL 117783, ¶ 32 (citing Ellman v. De Ruiter, 412 Ill. 285, 290
(1952), and People v. Touhy, 397 Ill. 19, 24 (1947)). See also, e.g., Mitchell v. King,
187 Ill. 452, 457 (1899); Ill. Ann. Stat., ch. 110, ¶ 2-1401, Historical and Practice
Notes, at 604 (Smith-Hurd 1983); David G. Seykora, Recall of Appellate Mandates
in Federal Civil Litigation, 64 Cornell L. Rev. 704, 710 (1979) (noting that the writ
of coram nobis was available in both appellate and trial courts). Given its purpose,
the writ of coram nobis had to be “filed in the court that rendered the judgment”
being contested. Warren County, 2015 IL 117783, ¶ 32; Mitchell, 187 Ill. at 457
(“the assignment of error was heard in the same court where the error was alleged to
have been committed”); Ill. Ann. Stat., ch. 110, ¶ 2-1401, Historical and Practice
Notes, at 608 (Smith-Hurd 1983).
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¶ 34 Although a few very early Illinois cases recognized the writ of coram nobis
(see, e.g., Beaubien v. Hamilton, 4 Ill. 213 (1841)), it was declared “obsolete” by
this court in 1867 (see McKindley v. Buck, 43 Ill. 488, 490 (1867)). In 1871, the
legislature expressly abolished the writ and replaced it with a statutory motion.
Ellman, 412 Ill. at 290-91. Since that time, a series of statutory provisions have
provided a mechanism for obtaining collateral relief from final judgments. Warren
County, 2015 IL 117783, ¶ 33.
¶ 35 In People v. Sheppard, 405 Ill. 79 (1950), this court addressed one such statute,
section 72 of the Civil Practice Act of 1933. At the time Sheppard was decided,
section 72 provided that all errors of fact which could have been corrected under
the writ of coram nobis could “be corrected by the court in which the error was
committed, upon motion in writing” at any time within five years after the rendition
of the final judgment in the case. Ill. Rev. Stat. 1949, ch. 110, ¶ 196. While section
72 spoke only of the necessity of filing the motion in “the court in which the error
was committed,” Sheppard held that, when possible, the motion also had to be
heard by the same judge who entered the contested judgment. Sheppard, 405 Ill. at
82. As the Sheppard court explained, this result followed from the nature of the writ
of coram nobis:
“A reasonable construction of section 72 of the Civil Practice Act [Ill. Rev.
Stat. 1949, ch. 110, ¶ 196], to the extent it provides that all errors in fact,
committed in the proceedings of any court of record, and which, by
the common law, could have been corrected by the writ of error coram nobis,
‘may be corrected by the court in which the error was committed,’ is that the
motion in the nature of a writ of error coram nobis should be presented to the
same judge who rendered the original judgment. As observed in McGrath &
Swanson Construction Co. v. Chicago Railways Co. 252 Ill. App. 479, ‘That
the errors to be corrected under the writ were errors of fact would seem to
require that the writ should be brought before the same judge who rendered the
original judgment, for he only would know whether or not he was ignorant of
the fact which if known would have prevented the judgment.’ ” Id.
¶ 36 In 1955, section 72 was substantially revised by the legislature. See Ill. Rev.
Stat. 1955, ch. 110, ¶ 72. Consistent with Sheppard, the legislature changed the
requirement that a section 72 motion be filed in the same court in which the error
was committed, to a requirement that a postjudgment petition “be filed in the same
proceeding in which the order, judgment or decree was entered.” Ill. Rev. Stat.
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1955, ch. 110, ¶ 72(2). By using the term “same proceeding,” the legislature
captured the point made in Sheppard that the petition had to be filed in the same
court in which the error occurred and, when possible, presented to the same judge
who rendered the original judgment. 1 Subsequent decisions, such as Kilbride, 64
Ill. App. 2d at 359 n.*, 360-61, have recognized that the term “same proceeding”
reflects the holding of Sheppard.
¶ 37 Apart from the removal of the word “decree,” the language in the current
version of section 2-1401(b) is identical to that found in the amended version of
section 72 addressed by Kilbride in 1965. Thus, for at least 50 years, Illinois courts
have held that the statutory requirement that a postjudgment petition be filed in the
“same proceeding” means that the petition must be filed in the same court in which
the judgment being challenged was entered and, when possible, heard by the same
judge who rendered that judgment. See also, e.g., Warren County, 2015 IL 117783,
¶ 35 (noting that “the legislature intended section 2-1401 to operate as the statutory
analog to the common law writ” of coram nobis). From this, it follows that a
litigant cannot file a section 2-1401 petition in circuit court to vacate the judgment
of a reviewing court. In such a case, the petition would not be filed in the same
court in which the judgment being challenged was entered and therefore, would not
be filed in the “same proceeding.”
¶ 38 This understanding of section 2-1401 is compelled not only by the language
and history of the statute, but also by our constitution. The judicial article of the
Illinois Constitution of 1970, like its predecessor in the constitution of 1870,
creates a three-tiered court system, with the appellate court sitting in review of the
circuit courts, and the supreme court sitting in review of the appellate and circuit
courts. Ill. Const. 1970, art. VI. A fundamental principle flows from this
hierarchical structure: “Where the Supreme Court has declared the law on any
point, it alone can overrule and modify its previous opinion, and the lower judicial
tribunals are bound by such decision and it is the duty of such lower tribunals to
follow such decision in similar cases.” (Emphasis added.) Agricultural
Transportation Ass’n v. Carpentier, 2 Ill. 2d 19, 27 (1953); Rickey v. Chicago
Transit Authority, 98 Ill. 2d 546, 551 (1983); Mekertichian v. Mercedes-Benz
1
The legislature could not, of course, create a mandatory requirement that the postjudgment
petition be presented to the same judge who rendered the original judgment because of the practical
limitations of such a rule: a litigant would be left without a remedy if the judge were to retire or pass
away before the postjudgment petition was filed.
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U.S.A., L.L.C., 347 Ill. App. 3d 828, 836 (2004) (noting that the failure to adhere to
this principle would “inject chaos into the judicial process”).
¶ 39 When conducting a trial or other ongoing proceeding, a circuit court has the
authority and responsibility to determine whether a supreme court decision is on
point and, therefore, must be applied in the case before it, or whether the decision is
distinguishable and should not be applied. But that is not the power which section
2-1401 confers on the circuit court. Section 2-1401 gives authority to the circuit
court to grant relief from a judgment, i.e., to vacate it and render it without legal
effect. Vincent, 226 Ill. 2d at 7. Under our constitutional scheme, the circuit court
cannot possess that power over a reviewing court’s judgment. Thus, to say that
section 2-1401 grants a circuit court the authority to vacate the judgment of a
reviewing court would be to say that the General Assembly intended to grant an
unconstitutional power to our circuit courts. We are certain this is not the case.
¶ 40 Since, under the terms of the statute, section 2-1401 does not authorize the
circuit court to vacate a reviewing court’s judgment, should a petitioner seeking
relief from a reviewing court judgment after the mandate has issued file a section
2-1401 petition directly in the reviewing court? No.
¶ 41 Under the Illinois Constitution of 1970, the procedures which govern appellate
practice in our reviewing courts are established by this court through its rulemaking
authority, not by the General Assembly through legislation. Ill. Const. 1970, art.
VI, § 16 (“The Supreme Court shall provide by rule for expeditious and
inexpensive appeals.”); People ex rel. Stamos v. Jones, 40 Ill. 2d 62, 66 (1968)
(“the constitution has placed responsibility for rules governing appeal in the
Supreme Court, and not in the General Assembly”); Ill. Ann. Stat., ch. 110,
¶ 1-107, Historical and Practice Notes, at 34-35 (Smith-Hurd 1983) (“the Illinois
Supreme Court is granted exclusive jurisdiction over the regulation of appeals by
the Judicial Article of the Constitution of 1970”). Section 2-1401 is a provision of
the Civil Practice Law, article II, of the Code of Civil Procedure (see 735 ILCS
5/1-101(b) (West 2012)), which governs civil practice in the circuit courts. Section
2-1401 is inapplicable to reviewing courts and, indeed, a determination that the
proceedings in the appellate or supreme court could be governed by the legislature
through section 2-1401 would raise serious separation of powers concerns. Koffski
v. Village of North Barrington, 241 Ill. App. 3d 479, 482-83 (1993).
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¶ 42 This does not mean, however, that a litigant seeking relief from a reviewing
court’s judgment under circumstances similar to those present here is without a
remedy. Appellate courts “are recognized to have an inherent power to recall their
mandates.” Calderon v. Thompson, 523 U.S. 538, 549 (1998). Because of “ ‘the
profound interests in repose’ ” that attach to the mandate of a reviewing court, the
power to recall a mandate is one that “can be exercised only in extraordinary
circumstances.” Id. at 550 (quoting 16 Charles Alan Wright et al., Federal Practice
and Procedure § 3938, at 712 (2d ed. 1996)). Nevertheless, this power is
long-standing, having been firmly “established in English practice long before the
foundation of our Republic.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322
U.S. 238, 244-45 (1944), rev’d on other grounds, Standard Oil Co. of California v.
United States, 429 U.S. 17 (1976) (per curiam). See also, e.g., Ex Parte James, 836
So. 2d 813, 836-39 (2002) (Houston, J., specially concurring) (collecting cases).
¶ 43 Although no Illinois Supreme Court rule addresses the general power of a
reviewing court to recall its mandate, 2 Rule 361(a) provides that “an application
for an order or other relief” in the reviewing court “shall be made by filing a
motion.” Ill. S. Ct. R. 361(a) (eff. Jan. 1, 2015). Further, motions to recall the
mandate have been considered, and ruled on, by this court in the past. See, e.g.,
Avery v. State Farm, No. 91494, Order Denying Motion by Appellees to Recall
Mandate and Vacate August 18, 2005 Judgment (filed Nov. 17, 2011),
http://www.illinoiscourts.gov/SupremeCourt/Announce/2011/111711_4.pdf. (last
visited Nov. 2, 2015). Thus, pursuant to this court’s rules and practice, after the
mandate of the reviewing court has issued, the appropriate means to bring to the
reviewing court’s attention factual matters that, if known to the court before entry
of judgment, would have precluded entry of that judgment, is by filing a motion to
recall the mandate in that court.
¶ 44 Notably, federal courts have reached the same conclusion under Federal Rule
of Civil Procedure 60(b) (Fed. R. Civ. P. 60(b)), the federal counterpart to section
2-1401. See, e.g., Ute Indian Tribe of the Uintah & Ouray Reservation v. State of
Utah, 114 F.3d 1513, 1520-22 (10th Cir. 1997); Eutectic Corp. v. Metco, Inc., 597
F.2d 32, 34 (2d Cir. 1979) (per curiam) (observing that a federal district court has
no authority to “alter or set aside” a judgment of the court of appeals). As one
2
Illinois Supreme Court Rule 368(c) (eff. July 1, 2006), provides that an appellate court
mandate may be recalled until the time for seeking review in this court has expired, and that this
court’s mandate may be recalled until the time for seeking review in United States Supreme Court
has expired.
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treatise states: “If the request for relief goes directly to the correctness of the court
of appeals ruling, *** the district court ordinarily lacks power to review the court of
appeals decision and any relief must be provided by the court of appeals.” 16
Charles Alan Wright et al., Federal Practice and Procedure § 3938 (3d ed. 2008).
¶ 45 For these reasons, we hold that section 2-1401 does not authorize the circuit
court to grant collateral relief from the judgment of a reviewing court. Such relief
must be sought by filing a motion to recall the mandate in the reviewing court.
Accordingly, neither the circuit court in this case, nor the appellate court on review,
had the authority to vacate the judgment of this court rendered in Price on
December 15, 2005.
¶ 46 B. The Lower Courts Did Not Have the Authority, Under Section 2-1401,
to Vacate the December 18, 2006, Dismissal Order
¶ 47 The appellate court below acknowledged that a “trial court obviously has no
authority to vacate or set aside” the judgment of a higher court, and further
observed that, if a circuit court “is to grant relief at all, it must grant relief from its
own order—assuming that it finds a basis for granting that relief.” Price v. Philip
Morris, Inc., No. 5-09-0089, slip order at 9 (2011) (unpublished order under Illinois
Supreme Court Rule 23). However, the appellate court read plaintiffs’ section
2-1401 petition not as challenging this court’s judgment in Price, but as
challenging only the order of dismissal that was entered in the circuit court on
December 18, 2006. The appellate court then concluded that, because the relief
sought was only the vacatur of the circuit court’s order of dismissal, rather than this
court’s judgment, plaintiffs’ petition was properly brought in circuit court. Id. at
9-10. 3
¶ 48 Before this court, plaintiffs mirror this reasoning. Plaintiffs again emphasize
that section 2-1401(a) states that relief is available in “every case *** regardless of
the nature of the order or judgment from which relief is sought” (735 ILCS
5/2-1401(a) (West 2012)), and that the statute contains no exception for orders
“entered at the direction of” a reviewing court. Thus, plaintiffs argue, even if
section 2-1401 did not authorize the circuit court to vacate the judgment rendered
3
Although this court denied the petition for leave to appeal from the first appellate decision in
this case, that action has no precedential effect. Mattis v. State Universities Retirement System, 212
Ill. 2d 58, 75 (2004). We may therefore consider any issues addressed in that appellate decision.
- 15 -
by this court in Price, it did authorize the circuit court to vacate the order of
dismissal and, therefore, the petition was properly brought in that court.
¶ 49 Plaintiffs’ argument rests on a misapprehension of the nature of the dismissal
order. “When a judgment is reversed by a court of review, the judgment of that
court is final upon all questions decided ***.” PSL Realty Co. v. Granite
Investment Co., 86 Ill. 2d 291, 305 (1981). If the cause is then remanded by the
reviewing court with instructions to the circuit court to enter a specific order, the
reviewing court’s judgment is, with respect to the merits, “the end of the case,” and
there is “nothing which the circuit court [is] authorized to do but enter the decree.”
Smith v. Dugger, 318 Ill. 215, 217 (1925). Because the circuit court has no
discretion on remand to take any further action on the merits, but must do only as
directed, the order entered in the circuit court is necessarily a “ministerial act.”
Gospel Army v. City of Los Angeles, 331 U.S. 543, 546 (1947); Ute Indian Tribe,
114 F.3d at 1521 (noting that once an appellate court resolves an issue and remands
the cause to enter judgment, the trial court can only follow the “ ‘ministerial
dictates of the mandate’ ”) (quoting Colorado Interstate Gas Co. v. Natural Gas
Pipeline Co. of America, 962 F.2d 1528, 1534 (10th Cir. 1992)). This
principle—that a circuit court order which is entered at the specific direction of a
reviewing court is a ministerial act—has long been recognized by this court. As we
stated in Dugger:
“A decree entered by a trial court in accordance with the mandate of this court
must be regarded as free from error. It is, in fact, the judgment of this court
promulgated through the trial court and is final and conclusive upon all the
parties.” (Emphasis added.) Dugger, 318 Ill. at 217 (citing People ex rel.
McKee v. Gilmer, 10 Ill. 242, 247-48 (1848).
¶ 50 The fact that a dismissal order entered at the direction of a reviewing court is a
ministerial act has consequences for how the order may be challenged under
section 2-1401. A petition may be brought under section 2-1401 to challenge the
order of dismissal if the argument made in the petition is that the circuit court failed
to comply with the mandate of the reviewing court. Such a petition would be asking
the circuit court only to reexamine the correctness of its own, ministerial act,
precisely the undertaking that section 2-1401 is designed to allow. Cf. 18B Charles
Alan Wright et al., Federal Practice and Procedure § 4478.3 (2d ed. 2002) (noting
that it is possible to attack a trial court judgment that violates an appellate mandate
under Federal Rule of Civil Procedure 60(b)).
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¶ 51 However, it is not permissible under section 2-1401 to challenge a dismissal
order entered at the direction of a reviewing court when the argument for relief is
based on the underlying merits of the case. Any merits-based challenge would
necessarily be directed to the judgment of the reviewing court because that is where
judgment was rendered and where the decision on the merits occurred. And, as we
have explained, section 2-1401 does not permit the circuit court to grant relief from
the judgment of a reviewing court, both because the “same proceeding” language of
section 2-1401(b) does not allow a challenge to a reviewing court’s judgment to be
brought in circuit court, and because our constitution prohibits the circuit court
from vacating the judgment of a higher court. Supra ¶¶ 29-45.
¶ 52 In this case, plaintiffs’ section 2-1401 petition is an impermissible attack on the
judgment rendered by this court in Price. Plaintiffs’ petition discusses Price at
length, describes the FTC’s statements and actions that took place after Price, and
argues why, in light of these actions, the decision that this court reached in Price
was incorrect. The petition concludes by stating that, “[a]s the final judgment was
predicated on an inaccurate interpretation of the historical record, the
newly-available evidence would have prevented entry of the judgment” and,
therefore, the circuit court should “vacate the final judgment in this case.” At no
point in their petition do plaintiffs allege that the circuit court failed in its
ministerial task of entering the dismissal order; the petition is addressed solely to
the effect of the FTC’s statements and actions on Price. Stated otherwise,
plaintiffs’ petition did not ask the circuit court to revisit the correctness of its own,
ministerial act of complying with this court’s mandate. Instead, the petition asked
the circuit court to revisit the correctness of this court’s judgment in Price. And that
is precisely what the circuit court did.
¶ 53 The circuit court described the task before it in addressing plaintiffs’ section
2-1401 petition:
“[T]his Court must determine whether it is more probably true than not that,
had the FTC position been presented in the record on appeal, the Illinois
Supreme Court would not have ruled in Defendant’s favor on its affirmative
defense that Plaintiffs’ claim was exempt pursuant to Section 10b(1) of the
[Consumer Fraud Act].”
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Thus, although the circuit court ultimately denied plaintiffs relief, the court’s
analysis rested on the fundamentally erroneous premise that it possessed the
authority to reconsider and, possibly alter, the judgment of this court.
¶ 54 The appellate court’s reasoning suffers from a similar error. The appellate court
frankly acknowledged that “plaintiffs cannot challenge the dismissal order without
also challenging the supreme court ruling” in Price and explained that “what the
plaintiffs are alleging is essentially that there are facts which, if brought to the trial
court’s attention during the original trial in this matter, would have caused the
supreme court to rule differently in its December 2005 decision—which in turn
would have led to a different result from the trial court after the mandate issued in
December 2006.” (Emphasis added.) Price v. Philip Morris, Inc., No. 5-09-0089,
slip order at 7, 9 (2011) (unpublished order under Illinois Supreme Court Rule 23).
The appellate court thus recognized that plaintiffs’ argument for vacating the
circuit court’s order of dismissal rested first on undoing the judgment of this court
in Price. And that is exactly what the appellate court attempted to do.
¶ 55 The appellate court, after considering plaintiffs’ petition, ultimately concluded
that the proper result was to “reinstate the verdict” entered in plaintiffs’ favor in the
original circuit court action in March 2003. 2014 IL App (5th) 130017, ¶¶ 59-60.
But the original judgment could only be reinstated if the appellate court effectively
vacated this court’s judgment in Price. The appellate court therefore attempted to
act as a superior court to this one. This is plainly incorrect. Under the hierarchical
judicial system created by our constitution, this court “alone can overrule and
modify its previous opinion.” Agricultural Transportation Ass’n, 2 Ill. 2d at 27.
¶ 56 Section 2-1401 does not permit an on-the-merits challenge to a dismissal order
entered at the direction of a reviewing court because such a challenge is necessarily
directed to the judgment rendered by the reviewing court. Because plaintiffs’
section 2-1401 petition in this case was such a challenge, neither the circuit court in
this case, nor the appellate court on review, had the authority to vacate the order of
dismissal entered on December 18, 2006.
¶ 57 C. Klose v. Mende
¶ 58 Plaintiffs cite one appellate decision, Klose v. Mende, 378 Ill. App. 3d 942
(2008) (Klose II), in support of their contention that section 2-1401 relief is
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available in this case. Klose involved a dispute between an Illinois township and
farmers Jerome and Ruth Klose, over proposed improvements to two rural
roadways that threatened to eliminate some of the Kloses’ cropland. The case
began in August 2000, when the Kloses brought a declaratory judgment action
against the township highway commissioner seeking a determination that they held
fee simple title to the disputed portions of the roadways. The defendant township
moved to dismiss the action based on certain documents which, the defendant
contended, established that the township had acquired a right to the roadways by
statutory dedication in 1856. The circuit court granted the township’s motion to
dismiss, finding that the statutory dedication was valid. Klose v. Mende, 329 Ill.
App. 3d 543, 544-45 (2001) (Klose I).
¶ 59 On appeal, the appellate court held that the documents offered by the township
were incomplete and, thus, insufficient to establish the statutory dedication. In
addition, the court held that the Kloses had proven, through documentary evidence
accompanying their complaint, that they possessed a fee simple interest in the
disputed land. However, the appellate court also found that the township had
acquired an easement by prescription for the portion of the roads in use at the time
of the action, although this easement did not permit the township to carry out the
proposed improvements. Id. at 546-49. The appellate court therefore vacated the
circuit court’s dismissal of the Kloses’ complaint and, in December 2001,
remanded the cause to the circuit court with instructions to enter an order
“establishing [the Kloses’] fee simple title and [the township’s] easement rights in
the two roadways.” Id. at 550.
¶ 60 What happened next is best stated in the words of the appellate court: “The
record indicates that thereafter the Kloses filed a motion to reinstate, to enter a
second amended complaint, to set a date for the township’s answer, and to order the
township to produce right-of-way maps. Various matters were continuously
pending in the trial court until the township filed [a] petition to reopen proofs
pursuant to section 2–1401 of the Code of Civil Procedure on April 10, 2003.”
Klose II, 378 Ill. App. 3d at 944.
¶ 61 The petition to reopen proofs was based on documents relating to the statutory
dedication that were found by the township in a town hall cupboard following the
remand to the circuit court. After a hearing on the petition, the circuit court
determined that these documents were newly discovered evidence which
“constituted the records that the appellate court determined were necessary to
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establish a valid dedication.” Id. at 946. For this reason, and because the court
concluded the remaining elements of section 2-1401 were satisfied, the circuit court
granted the township’s section 2-1401 petition to “reopen proofs.” Id.
¶ 62 On appeal for the second time, the appellate court agreed with the circuit
court’s conclusion that the newly discovered documents were the ones that were
necessary to establish the statutory dedication and stated that “[h]ad the township
known of their existence and been able to present the documents during the original
proceedings, the trial court’s ruling in its favor would have been affirmed by this
court.” Id. at 947. The appellate court also agreed with the circuit court’s
determination that the elements of section 2-1401 had been satisfied. The appellate
court therefore affirmed the judgment of the circuit court, holding that the circuit
court had properly granted “the township leave to reopen proofs.” Id. at 952.
¶ 63 Plaintiffs in the present case contend that, in Klose II, the appellate court
approved the circuit court’s “vacatur of a judgment previously entered at the
direction of the appellate court.” Thus, plaintiffs maintain that Klose II supports
their contention that the circuit court in this case had the authority, under section
2-1401, to vacate the December 18, 2006, dismissal order, even if that meant the
circuit court had to address the merits of this court’s decision in Price.
¶ 64 Plaintiffs misread Klose II. Following the first appeal in Klose I, the appellate
court did not simply reverse the circuit court’s dismissal of the Kloses’ complaint;
it also ruled on the merits and instructed the circuit court to enter an order
“establishing [the Kloses’] fee simple title and [the township’s] easement rights in
the two roadways.” Klose I, 329 Ill. App. 3d at 550. This was a direction to the
circuit court to perform a ministerial act that would have concluded all proceedings
with respect to the Kloses’ complaint. However, no such order was entered.
Instead, on remand the Kloses’ moved to reinstate their original complaint and to
file a second amended complaint, and the case continued in the circuit court for
almost a year and a half until the township filed its petition under section 2-1401.
Klose II, 378 Ill. App. 3d at 944. Thus, rather than ending the case, the circuit court
treated the matter as if it had been remanded by the appellate court in Klose I for a
trial on the Kloses’ complaint.
¶ 65 The appellate court, in Klose II, never explained why the circuit court did not
enter the order it had been directed to enter. Whatever the reason, the fact that no
order was entered distinguishes Klose II from the case before us. Unlike Price,
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where the circuit court entered the dismissal order, Klose was an ongoing
proceeding following the remand, going forward on the Kloses’ complaint for
declaratory judgment. During the remand proceedings, the circuit court did not
vacate an order entered at the direction of the appellate court for the simple reason
that no such order had ever been entered. Thus, contrary to plaintiffs’ assertions,
Klose II cannot stand for the proposition that a circuit court has the authority to
vacate an order entered at the direction of a reviewing court and, therefore, the case
has no relevance here.
¶ 66 And Klose II is problematic for another reason. Section 2-1401 is a procedural
mechanism for vacating final judgments more than 30 days after their entry.
Vincent, 226 Ill. 2d at 7. The statute plays no role in an ongoing case. Once the
circuit court in Klose permitted the case to go forward after the remand, it erred by
permitting the township to file its request to reopen proofs as a section 2-1401
petition. The circuit court should have treated the township’s request as a motion
filed in an ongoing proceeding, subject to the usual rules regarding the law of the
case, and then rendered judgment on the Kloses’ complaint. There was no need to
invoke section 2-1401, which served only to unnecessarily complicate matters. See,
e.g., 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478 (2d ed.
2008) (noting the distinction between a collateral challenge to a final judgment
brought under Federal Rule of Civil Procedure 60(b), which is a separate cause of
action, and motions brought during the course of a single, continuing lawsuit
following remand). For this reason as well, Klose II is unpersuasive.
¶ 67 In this case, whether the prayer in plaintiffs’ section 2-1401 petition “to vacate
the final judgment” is viewed as a request to the circuit court to vacate the
December 15, 2005, judgment of this court, or a request to vacate the December 18,
2006, dismissal order on the merits, the result is the same: the circuit court was
asked to do something it does not have the authority to do—vacate a judgment of a
higher court. Accordingly, the circuit court erred in considering the merits of
plaintiffs’ section 2-1401 petition. As relief was unavailable under that provision,
the petition should have been dismissed. Vincent, 226 Ill. 2d at 8 (a section 2-1401
petition is subject to dismissal if, “ ‘on its face, it shows that the petitioner is not
entitled to relief’ ” (quoting Klein v. La Salle National Bank, 155 Ill. 2d 201, 205
(1993))). We therefore vacate the judgments of the circuit and appellate courts and
dismiss this cause of action.
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¶ 68 The dissent concludes that we have “misconstrue[d]” section 2-1401. Infra
¶ 97. Dismissing the common law origins and long-accepted understanding of the
statute, the dissent finds that the General Assembly, in enacting section 2-1401,
intended to give our circuit courts the authority to vacate a judgment rendered by a
reviewing court. Thus, the dissent would hold that the circuit court in this case had
the authority to vacate the December 18, 2006, dismissal order on the merits—even
though, to do so, the circuit court would first have to vacate the judgment rendered
by this court in Price.
¶ 69 The dissent justifies this result on the basis of necessity. According to the
dissent, section 2-1401 must be read as authorizing a circuit court to vacate the
judgment of a reviewing court in order “to promote justice and fairness.” Infra ¶ 78.
Our holding to the contrary, the dissent explains, improperly denies a remedy to
plaintiffs in this case, as well as others similarly situated, and defeats the goals of
achieving “fundamental fairness and substantial justice” (infra ¶ 118).
¶ 70 This is emphatically untrue. As we have explained, plaintiffs and other
similarly situated litigants have a remedy: they may file a motion, pursuant to
Illinois Supreme Court Rule 361 (eff. Jan. 1, 2015), to recall the mandate in the
reviewing court in which the contested judgment was rendered. This remedy
permits “justice and fairness” to be achieved, and it does so in a way that does not
require ceding the authority of our reviewing courts to the circuit courts. There is no
need, therefore, to embrace an interpretation of section 2-1401, as the dissent does,
that upends the judicial hierarchy and that flies in the face of common sense.
¶ 71 Finally, we note that plaintiffs have not moved in this court to recall the
mandate from Price, and that we have no briefing or argument on how the
standards applicable to a motion to recall the mandate would apply to that case. 4 In
these circumstances, we decline to sua sponte recast plaintiffs’ section 2-1401
petition as a motion to recall the mandate from Price. We express no opinion on the
merits of a motion to recall the mandate, should such a motion be filed in this court
at a future date.
4
Counsel for plaintiffs was asked at oral argument whether this case should have been brought
as a motion to recall the mandate. He responded that it was not necessary to file such a motion since
section 2-1401 authorized the circuit court to grant relief.
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¶ 72 CONCLUSION
¶ 73 For the foregoing reasons, the judgments of the appellate and circuit courts are
vacated. The cause is dismissed without prejudice to plaintiffs to file a motion to
recall the mandate in this court.
¶ 74 Judgments vacated.
¶ 75 Cause dismissed.
¶ 76 JUSTICE FREEMAN, dissenting:
¶ 77 Pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2012)), plaintiffs filed a petition for relief from judgment in the circuit court
of Madison County. The circuit court denied the petition, and the appellate court
reversed the judgment of the circuit court. 2014 IL App (5th) 130017. This court
holds that the lower courts in the instant case erred in considering the merits of
plaintiffs’ section 2-1401 petition, vacates the judgments of the circuit and
appellate courts, and dismisses this section 2-1401 cause of action. My colleagues
in the majority reason that plaintiffs in reality sought the vacatur of this court’s
decision in Price v. Philip Morris, Inc., 219 Ill. 2d 182 (2005) (plurality opinion),
and that section 2-1401 does not authorize a circuit court to vacate the judgment of
a reviewing court.
¶ 78 I disagree. Plaintiffs filed their section 2-1401 petition under a unique set of
circumstances. The appellate court correctly applied section 2-1401 exactly as the
legislature intended—to promote justice and fairness. Accordingly, I dissent.
¶ 79 I. BACKGROUND
¶ 80 Plaintiffs filed a consumer fraud class action against defendant, Philip Morris,
Inc., alleging violations of the Illinois Consumer Fraud and Deceptive Business
Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)) and the
Uniform Deceptive Trade Practices Act (Deceptive Practices Act) (815 ILCS 510/1
et seq. (West 1998)). The circuit court certified a class of Illinois residents who had
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bought “Light” cigarettes in Illinois ever since the introduction of Marlboro Lights
in 1971. Plaintiffs alleged that the word “lights” and the phrase “lowered tar and
nicotine” were deceptive in that those words led each consumer to believe that he or
she would receive lower tar and nicotine from these cigarettes and that, as a result,
smoking them would be less hazardous than smoking regular cigarettes. Plaintiffs
alleged that all class members bought Lights in reliance on this belief, and that no
class member would have bought Lights “but for” defendant’s unfair or deceptive
acts or practices.
¶ 81 Defendant asserted as an affirmative defense section 10b(1) of the Consumer
Fraud Act, which exempts conduct “specifically authorized by laws administered
by any regulatory body or officer acting under statutory authority of this State or
the United States.” 815 ILCS 505/10b(1) (West 1998). In pretrial proceedings and
at trial, it was defendant’s position that its use of the terms “lights” and “lowered tar
and nicotine” complied with Federal Trade Commission (FTC) policies. Plaintiffs
presented evidence that the FTC did not have an official policy that permitted
cigarette companies to use these terms.
¶ 82 It was undisputed that there was no industry-wide formal rulemaking
authorizing the use of the disputed descriptors. Further, the FTC does not have any
industry-wide formal rule that authorizes or requires cigarette manufacturers to use
the terms “light” or “low tar” or any variation thereof. However, defendant’s expert
witness, Dr. John Peterman, testified, inter alia, that a 1971 agreement between the
FTC and a cigarette company, memorialized in a consent order, In re American
Brands, Inc., 79 F.T.C. 225 (1971), was “an official act of the FTC,” the terms of
which provided “industry guidance to *** [Philip Morris] and others regarding the
use of descriptors.” According to Peterman, the FTC likewise intended to provide
industrywide guidance with respect to the use of these descriptors in another
consent order, In re American Tobacco Co., 119 F.T.C. 3 (1995).
¶ 83 At the close of trial, the circuit court denied defendant’s section 10b(1)
affirmative defense, specifically finding that defendant voluntarily chose to use
those terms on packages of Marlboro Lights and Cambridge Lights, and that no
regulatory body had ever required, or even specifically approved, defendant to use
those terms. The circuit court found in favor of plaintiffs and awarded damages
totaling $10.1 billion.
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¶ 84 This court took the appeal directly from the circuit court. Ill. S. Ct. R. 302(b)
(eff. Feb. 1, 1984). The lead opinion reversed the judgment “on the basis that this
action is barred by section 10b(1) of the Consumer Fraud Act.” 219 Ill. 2d at 185.
Justice Garman, joined by Justice McMorrow, concluded that “the FTC’s informal
regulatory activity, including the use of consent orders, comes within the scope of
section 10b(1)’s requirement that the specific authorization be made ‘by laws
administered by’ a state or federal regulatory body.” Id. at 258. The plurality
reasoned that through the 1971 and 1995 consent orders, “the FTC could, and did,
specifically authorize” all U.S. tobacco companies to use the words “low,” “lower,”
“reduced,” “light,” or similar descriptors. Id. at 265. This court reversed the
judgment and remanded the case to the circuit court with instructions to dismiss the
action, according to the plurality, “pursuant to section 10b(1) of the Consumer
Fraud Act.” Id. at 274.
¶ 85 Justice Karmeier specially concurred, joined by Justice Fitzgerald. Justice
Karmeier did not specifically agree with the lead opinion’s section 10b(1) analysis.
Id. at 275 (Karmeier, J., specially concurring, joined by Fitzgerald, J.) (“I agree that
the judgment of the circuit court should be reversed. In my view however, that
conclusion is not dependent on the applicability of section 10b(1) of the Consumer
Fraud Act [citation].”). Justice Karmeier opined that plaintiffs’ consumer fraud
claim failed because “plaintiffs failed to establish that they sustained actual
damages.” Id. However, he “fully concur[red] in the result reached by the [lead
opinion].” Id. at 285.
¶ 86 I dissented, as did Justice Kilbride. We opined that the FTC’s regulatory
activity did not rise to the level of “specific authorization” for defendant to use the
disputed descriptors in marketing the light cigarettes. Id. at 299 (Freeman, J.,
dissenting, joined by Kilbride, J.); id. at 336 (Kilbride, J., dissenting, joined by
Freeman, J.).
¶ 87 Plaintiffs filed a petition for rehearing, which was denied by a divided court. Id.
at 337 (Freeman, J., dissenting, joined by Kilbride, J.). In November 2006, the
United States Supreme Court denied plaintiffs’ petition for a writ of certiorari.
Price v. Philip Morris Inc., 549 U.S. 1054 (2006). On December 5, 2006, this court
issued its mandate to the circuit court. On December 18, 2006, the circuit court
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complied with this court’s mandate and entered an order dismissing the action with
prejudice. 5
¶ 88 In June 2008, the federal government filed an amicus brief in Altria Group, Inc.
v. Good, 555 U.S. 70 (2008). There, the federal government explained that the
FTC: had never given the disputed descriptors any official definition; had never
required any action on the part of defendant; had never affirmatively authorized the
use of such terms; and did not intend for its two prior consent orders to “authorize”
alleged deceptive conduct. In a separate matter, on December 8, 2008, the FTC
rescinded its prior 1966 guidance concerning machine measurements of tar and
nicotine yields. The FTC explained that its earlier guidance never authorized the
use of descriptors. 73 Fed. Reg. 74,500 (Dec. 8, 2008). See 219 Ill. 2d at 188-89.
On December 15, 2008, the Supreme Court handed down its decision in Altria
Group, Inc. v. Good. The Court rejected an affirmative defense similar to what
defendant raised here, and recognizing the federal government’s amicus brief,
concluded that the FTC never had any policy authorizing the use of the disputed
descriptors. Good, 555 U.S. at 87-89.
¶ 89 On December 18, 2008, exactly two years from the circuit court’s entry of its
dismissal order, plaintiffs filed a section 2-1401 petition for relief from judgment.
Plaintiffs alleged that the lack of any FTC authorization of the contested descriptors
undermined the entire basis for this court’s holding in Price. The circuit court
granted defendant’s motion to dismiss on the basis that it was not timely filed. The
appellate court reversed and remanded, holding that section 2-1401’s two-year time
limit began to run not when this court decided the case in December 2005, but when
the circuit court entered its dismissal order on December 18, 2006. The lower
courts did not reach the merits of the petition. Price v. Philip Morris, Inc., No.
5
In January 2007, plaintiffs filed a postjudgment motion pursuant to section 2-1203 of the Code
of Civil Procedure (735 ILCS 5/2-1203 (West 2006)). The motion sought to bring to the circuit
court’s attention an FTC brief filed in Watson v. Philip Morris Cos., 551 U.S. 142 (2007), in which
the FTC explained that it had never requested or required tobacco companies to use these
descriptors in advertising their cigarettes. Further, the Supreme Court reversed the decision of the
lower court, which the lead opinion in Price discussed with approval. The circuit court certified
questions for interlocutory appeal. Philip Morris, Inc. v. Byron, 226 Ill. 2d 416, 421-22 (2007)
(Freeman, J., dissenting, joined by Kilbride, J.). This court allowed PMUSA’s motion for a
supervisory order, and directed the circuit court to vacate its order certifying questions for
interlocutory appeal, and to dismiss plaintiffs’ section 2-1203 motion. On August 30, 2007, the
circuit court dismissed plaintiffs’ section 2-1203 postjudgment motion in compliance with this
court’s mandate.
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5-09-0089 (2011) (unpublished order under Illinois Supreme Court Rule 23),
appeal denied, No. 112067 (Ill. Sept. 30, 2011).
¶ 90 On remand, plaintiffs filed the instant amended section 2-1401 petition.
Reaching the merits, the circuit court again denied the petition. The court found that
plaintiffs were diligent in filing their petition, and found that they had a meritorious
claim, i.e., that had the true FTC position been known in the underlying case,
defendant would not have prevailed on its Consumer Fraud Act section 10b(1)
affirmative defense. However, the circuit court found that it was equally as likely
that this court would have ruled in defendant’s favor based on the issue of damages.
See 219 Ill. 2d at 275 (Karmeier, J., specially concurring, joined by Fitzgerald, J.).
Thus, plaintiffs failed to prove that they probably would have prevailed.
¶ 91 The appellate court reversed. 2014 IL App (5th) 130017. The appellate court
agreed with the circuit court that (1) plaintiffs exercised due diligence in contesting
the issue of FTC-authorization of the descriptors in the original trial (id. ¶¶ 17-21),
and (2) plaintiffs met their burden of proving a meritorious claim (id. ¶¶ 22-29).
However, the appellate court disagreed with the circuit court’s conclusion that this
court would have ruled in favor of defendant on the issue of damages. Thus, the
appellate court held that the circuit court exceeded the scope of section 2-1401
when it attempted to predict how this court would rule on the issue of damages. The
appellate court reversed the circuit court’s denial of plaintiff’s section 2-1401
petition (id. ¶¶ 56-57). The appellate court concluded that granting the section
2-1401 petition for relief from judgment has the effect of “reinstat[ing] the
proceedings with the verdict intact” (id. ¶¶ 58-60). Defendant appeals to this court.
Additional pertinent background will be discussed in the context of the analysis.
¶ 92 II. ANALYSIS
¶ 93 This court holds that the circuit and appellate courts lacked the authority,
pursuant to section 2-1401, to vacate the circuit court’s December 18, 2006, order
dismissing plaintiffs’ consumer fraud class action. I disagree.
¶ 94 In construing section 2-1401, the guiding principles are familiar. The primary
objective in construing a statute is to ascertain and give effect to the intention of the
legislature. All other rules of statutory construction are subordinate to this cardinal
principle. The most reliable indicator of legislative intent is the language of the
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statute, which must be given its plain and ordinary meaning. Viewing a statute as a
whole, words and phrases are construed in light of other relevant statutory
provisions and not in isolation. Each word, clause, and sentence must be given a
reasonable meaning, if possible, and should not be rendered superfluous. The court
may consider the reason for the law, the problems sought to be remedied and the
purposes to be achieved, and the consequences of construing the statute one way or
another. Chicago Teachers Union, Local No. 1 v. Board of Education of the City of
Chicago, 2012 IL 112566, ¶ 15; People v. Botruff, 212 Ill. 2d 166, 174-75 (2004).
¶ 95 Section 2-1401 of the Code of Civil Procedure 6 provides in pertinent part:
“(a) Relief from final orders and judgments, after 30 days from the entry
thereof, may be had upon petition as provided in this Section. Writs of error
coram nobis and coram vobis, bills of review and bills in the nature of bills of
review are abolished. All relief heretofore obtainable and the grounds for such
relief heretofore available, whether by any of the foregoing remedies or
otherwise, shall be available in every case, by proceedings hereunder,
regardless of the nature of the order or judgment from which relief is sought or
of the proceedings in which it was entered. Except as provided in Section 6 of
the Illinois Parentage Act of 1984, there shall be no distinction between actions
and other proceedings, statutory or otherwise, as to availability of relief,
grounds for relief or the relief obtainable.” 735 ILCS 5/2-1401 (West 2012).
Section 2-1401 establishes a comprehensive statutory procedure by which final
orders and judgments may be vacated or modified more than 30 days after their
entry. Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 94 (2006); Smith
v. Airoom, Inc., 114 Ill. 2d 209, 220 (1986). A section 2-1401 petition “can present
either a factual or legal challenge to a final judgment or order.” Warren County Soil
& Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. Although a
section 2-1401 petition must be filed in the same proceeding in which the order or
judgment was entered, the petition is not a continuation of that proceeding and does
not affect the order or judgment. 735 ILCS 5/2-1401(b), (d) (West 2012). Thus,
section 2-1401 establishes an action that is independent and separate from the
original proceeding. The petition must be supported by affidavit or other
appropriate showing for matters not in the record, and must be filed not later than
two years after the entry of the final order or judgment in the original proceeding.
6
This provision was formerly codified as section 72 of the Civil Practice Act (Ill. Rev. Stat.
1981, ch. 110, ¶ 72).
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735 ILCS 5/2-1401(b), (c) (West 2012); Warren County, 2015 IL 117783, ¶ 31;
Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 279 (1982).
¶ 96 Further, this court has long recognized that a section 2-1401 petition invokes
the equitable powers of a circuit court where necessary to prevent injustice. Warren
County, 2015 IL 117783, ¶ 34 (quoting Ellman v. De Ruiter, 412 Ill. 285, 292
(1952)). Accordingly, the question of whether a section 2-1401 petition should be
granted lies within the sound discretion of the circuit court, depending on the facts
and equities presented. Warren County, 2015 IL 117783, ¶ 37; Airoom, 114 Ill. 2d
at 221.
¶ 97 The court reasons that section 2-1401 relief from judgment is unavailable in the
case at bar because the instant section 2-1401 petition is, in reality, directed not at
the circuit court’s December 18, 2006, dismissal order, but rather at this court’s
judgment in our original Price decision (supra ¶¶ 46-56), and because section
2-1401 does not authorize a circuit court to vacate the judgment of a reviewing
court (id. ¶¶ 29-45). The court misconstrues section 2-1401 and misapplies that
provision to this unique procedural situation.
¶ 98 Plaintiffs properly invoked, and the appellate court properly applied, section
2-1401 to the instant case. In Price, this court reversed the judgment entered in
favor of plaintiffs and remanded to the circuit court with instructions that the circuit
court dismiss plaintiffs’ consumer fraud class action. Price, 219 Ill. 2d at 274. The
circuit court complied with this court’s mandate and entered its order dismissing
the action. All requirements having been accomplished, the original action based
on the then-existing record was thereby terminated.
¶ 99 However, by filing their section 2-1401 petition for relief from judgment,
plaintiffs brought a new action that presented a factual and legal challenge to the
final dismissal order. Plaintiffs filed their section 2-1401 petition in the circuit court
because it was the circuit court that entered the final order in the original
proceeding. 735 ILCS 5/2-1401(b) (West 2012). In holding that the section 2-1401
petition was timely filed, the appellate court reasoned: “The trial court obviously
has no authority to vacate or set aside the supreme court’s ruling in the case. Thus,
if it is to grant relief at all, it must grant relief from its own order—assuming that it
finds a basis for granting that relief.” Price, slip order at 9 (unpublished order under
Illinois Supreme Court Rule 23). In the same unpublished order, the appellate court
recognized the unique circumstances of this case: “Just as the plaintiffs cannot
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challenge the dismissal order without also challenging the supreme court ruling,
they cannot challenge the supreme court ruling without challenging the trial court’s
dismissal order.” Id.
¶ 100 However, the relief from judgment that the legislature provides in section
2-1401 covers even unique situations. Section 2-1401 expressly provides that relief
from judgment “shall be available in every case *** regardless of the nature of the
order or judgment from which relief is sought or of the proceedings in which it was
entered.” (Emphasis added.) 735 ILCS 5/2-1401(a) (West 2012). The statute does
not create an exception for judgments entered at the direction of this court. A court
will not depart from the plain language of a statute by reading into it exceptions,
limitations, or conditions that conflict with the express legislative intent. In re S.L.,
2014 IL 115424, ¶ 16; People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003).
Thus, even this court’s 2005 Price decision does not immunize the judgment
entered pursuant to that decision from section 2-1401 relief. Disappointingly, this
court strains to read “exceptions, limitations, or conditions” into the unconditional
language of section 2-1401. In so doing, the court misapprehends or overlooks
settled law.
¶ 101 Initially, the court labors to create a statutory distinction between a section
2-1401 petition challenging an original circuit court judgment that was affirmed on
appeal, and a section 2-1401 petition challenging an original circuit court judgment
that was reversed on appeal. However, in both cases, the section 2-1401 petition is a
new action based on matters that were not in the original record, which the
reviewing court consequently did not consider. In both cases, relief is sought on the
theory that these new matters would have changed the result in the original action.
Because “the [section 2-1401] proceeding does not constitute an attack on the
judgment of [the reviewing] court it does not come within the inherent power of
[the reviewing court] to protect its appellate jurisdiction.” People v. Dabbs, 372 Ill.
160, 166 (1939).
¶ 102 For example, my colleagues in the majority cite to Standard Oil Co. of
California v. United States, 429 U.S. 17 (1976) (per curiam), in support of their
newly created distinction. However, the Court’s application of Federal Rule of
Civil Procedure 60(b) actually accords with my view of the instant case. Rule 60(b)
is the federal counterpart to section 2-1401. We must begin with the premise that
“Rule 60(b) enables a court to grant relief from a judgment in circumstances in
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which the need for truth outweighs the value of finality in litigation.” 12 James
Wm. Moore, Moore’s Federal Practice § 60.02(2), at 60-16 (3d ed. 2015).
¶ 103 In Standard Oil, the Court abolished the rule that “required appellate leave
before the District Court could reopen a case which had been reviewed on appeal.”
(Emphasis added.) Standard Oil, 429 U.S. at 18. The Court reasoned: “Like the
original district court judgment, the appellate mandate relates to the record and
issues then before the court, and does not purport to deal with possible later events.
Hence, the district judge is not flouting the mandate by acting on the motion.”
(Emphasis added.) Id. As a leading federal practice treatise explains:
“An appellate court may not know whether the requirements for reopening a
case under [Rule 60(b)] are met until there has been a full record developed.
Such a record only can be made in the trial court. Of course the district judge is
not free to flout the decision of the appellate court so far as it goes, but the judge
should be free to consider whether circumstances not previously known to
either court compel a new trial. If the trial judge goes too far, and grants, in
effect, a rehearing of the appellate court’s decision, the normal processes of
review still are open. To require in every case the formality of application to the
appellate court, which has no facilities for examining the merits of the claim for
a new trial, to guard against the possibility that a rare district judge may reopen
a judgment that should remain closed, was of dubious utility. Thus, the
Standard Oil Court cited its confidence in the ability of the district courts to
recognize frivolous Rule 60(b) motions.” (Emphasis added.) 11 Charles Alan
Wright et al., Federal Practice and Procedure § 2873, at 607-08 (2012).
The reasoning underlying Standard Oil applies to petitions for relief from
judgments that have been affirmed or reversed by reviewing courts.
¶ 104 Understandably, my colleagues in the majority stress the “mandate rule” which
provides simply that a trial court must obey the clear and unambiguous directions in
a mandate issued by a reviewing court. People ex rel. Daley v. Schreier, 92 Ill. 2d
271, 276-77 (1982) (and cases cited therein). They even invoke the federal mandate
rule to support their conclusion that, after the mandate of the reviewing court has
issued, the appropriate means to bring to the reviewing court’s attention factual
matters, which if known to the reviewing court before entry of judgment, would
have precluded entry of judgment, is by filing a motion to recall the mandate in the
reviewing court. Supra ¶ 43. As the treatise cited by the court (id. ¶ 44) explains:
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“Most requests for relief [pursuant to Federal Rule of Civil Procedure 60]
involve matters that happened or should have happened in the district court, not
the court of appeals, and are properly acted upon by the district court under
Rule 60. *** If the request for relief goes directly to the correctness of the court
of appeals ruling, on the other hand, the district court ordinarily lacks power to
review the court of appeals decision and any relief must be provided by the
court of appeals.” 16 Charles Alan Wright et al., Federal Practice and
Procedure § 3938, at 875-77 (3d ed. 2012).
However, the same treatise elsewhere discusses the federal mandate rule in relation
to Federal Rule of Civil Procedure 60:
“If final judgment has been entered on remand, Civil Rule 60(b) provides
the general procedure for seeking relief on the basis of matters that were not
before the appellate court. It is clear that a Rule 60(b) motion cannot be used
simply to reopen the court of appeals decision ***. *** But it also is clear that
many of the grounds of relief recognized by Rule 60(b) do not attack the court
of appeals decision. Relief instead rests on matters outside the original record,
and arguments that seek to justify reopening the record. The fact that the
judgment was entered on remand after consideration by the court of appeals
should not oust the operation of Rule 60(b). A showing of new facts that could
not have been presented earlier, or could not reasonably have been presented
earlier, is a simple illustration.” (Emphasis added.) 18B Charles Alan Wright
et al., Federal Practice and Procedure § 4478.3, at 748-49 (2d ed. 2002).
Thus, the fact that a circuit court judgment has been reviewed on appeal, affirmed
or reversed, does not preclude the filing of a section 2-1401 petition.
¶ 105 Also, the court looks back to the writ of coram nobis, which was a common law
antecedent of section 2-1401, to conclude that plaintiffs could not have filed their
section 2-1401 petition in the circuit court. Supra ¶¶ 33-37. Although this
discussion is an interesting historical essay, it does not describe the scope of
modern-day section 2-1401, which invokes a circuit court’s equitable powers.
Ellman, 412 Ill. at 292. This court observed long ago:
“All who are conversant with the history of equity jurisprudence know that as a
distinct system it has been of constant growth and development from its
inception, covering a period of hundreds of years. ‘The jurisdiction of a court of
equity does not depend upon the mere accident whether the court has, in some
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previous case or at some distant period of time, granted relief under similar
circumstances, but rather upon the necessities of mankind, and the great
principles of natural justice ***.’ [Citation.]” First National Bank of Chicago v.
Bryn Mawr Beach Building Corp., 365 Ill. 409, 421 (1937).
Indeed, a historical review shows that Illinois courts encouraged the development
of section 2-1401 and have permitted its use in new situations where the exercise of
such power is necessary to prevent injustice. Warren County, 2015 IL 117783,
¶¶ 32-34.
¶ 106 Disappointingly, the court cites to our recent decision in Warren County for the
proposition that section 2-1401 relief is constrained by a historical, limited
understanding of the statute (supra ¶ 37). My colleagues in the majority grasp at
straws. This court’s statement in Warren County that “the legislature intended
section 2-1401 to operate as the statutory analog to the common law writ” (2015 IL
117783, ¶ 35) concludes a historical discussion that ties the historical trend of
broadening relief from judgments to the unconditional language of section 2-1401.
As Justice Davis of this court observed:
“It is well that the limits under which relief may be granted pursuant to
Section [2-1401] are not precisely defined and have not yet been plumbed. Such
boundaries should be flexible to afford growth and development under the
philosophy that the desire to achieve substantial justice, viewed in the
perspective of the importance of the finality and stability of judgments, will
indicate when relief from judgments may be granted.” Charles S. Davis, The
Scope of Section 72 of the Civil Practice Act, 55 Ill. B.J. 820, 830 (1967).
I reiterate that the power to set aside a judgment pursuant to section 2-1401 is based
upon substantial principles of fairness and is to be exercised for the prevention of
injury and for the furtherance of justice. Paul v. Gerald Adelman & Associates,
Ltd., 223 Ill. 2d 85, 95 (2006); Smith v. Airoom, Inc., 114 Ill. 2d 209, 225 (1986).
¶ 107 Further, I am disappointed that the court needlessly injects constitutional
confusion into this case in order to bolster its position. The court observes that the
Illinois Constitution establishes our three-tiered court system, and invokes the rule
of vertical stare decisis: a lower court is obligated to follow the decisions of a
higher court. Therefore, according to the court, it would be unconstitutional for a
circuit court to grant section 2-1401 relief from the judgment of a higher court.
Supra ¶ 38. Certainly, vertical stare decisis has been historically viewed as a
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command, obligation, or rule. See O’Casek v. Children’s Home & Aid Society of
Illinois, 229 Ill. 2d 421, 453 n.4 (2008) (Karmeier, J., dissenting, joined by
Thomas, C.J., and Garman, J.); M.B.W. Sinclair, Statutory Reasoning, 46 Drake L.
Rev. 299, 364 (1997) (“A judge is *** bound by the prior decisions of the courts
superior to her court in the jurisdiction’s hierarchy; that’s vertical stare decisis. It is
just what it means to have an hierarchical structure in the court system.”). However,
it is very debatable whether the doctrine of vertical stare decisis is constitutionally
mandated. See Richard W. Murphy, Separation of Powers and the Horizontal
Force of Precedent, 78 Notre Dame L. Rev. 1075, 1086 (2003); John Harrison, The
Power of Congress Over the Rules of Precedent, 50 Duke L.J. 503, 518 (2000).
¶ 108 Also, granting section 2-1401 relief to plaintiffs in the case at bar obviously is
not “a determination that the proceedings in the appellate or supreme court could be
governed by the legislature through section 2-1401.” Supra ¶ 41. Again, the federal
practice treatise cited by the court explains that if, in a Rule 60(b) proceeding, “the
trial judge goes too far, and grants, in effect, a rehearing of the appellate court’s
decision, the normal processes of review still are open.” (Emphasis added.) 11
Charles Alan Wright et al., Federal Practice and Procedure § 2873, at 608 (2012).
The lower courts obviously did nothing to affect this court’s authority to regulate
appeals or our rules governing appeals. Beginning with defendant filing its petition
for leave to appeal, the parties have complied with our rules.
¶ 109 Admittedly, this case comes to us with an unusual procedural background.
Unfortunately, instead of simply applying section 2-1401 as the legislature
intended to achieve justice, the court needlessly muddies the waters with strained
constitutional discussion to support its mistaken course.
¶ 110 Based on the foregoing, a court should grant relief under section 2-1401 where
necessary to achieve justice, construing the statute liberally. People v. Lawton, 212
Ill. 2d 285, 298-99 (2004). Klose v. Mende, 378 Ill. App. 3d 942 (2008), appeal
denied, 228 Ill. 2d 534 (2008), is exemplative. In 2000, defendant, Meriden
Township, notified plaintiffs, Jerome and Ruth Klose, that it intended to improve
North 4550th Road by blacktopping it eastward from East 10th Road for a distance
of 3000 feet. These roads bound the Kloses’ land on the north and west sides,
respectively. Frederick Mende, then highway commissioner, asserted that the
township had acquired a 66-foot-wide right-of-way in the road to be paved by an
1856 statutory dedication. As proof of the township’s assertion, Mende sent the
Kloses certain pages of the township ledger kept by the township clerk, which
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indicated an 1856 statutory dedication of the 66-foot-wide road. The township was
unable to produce any other documents, including the survey that was prepared at
the time the road was originally constructed, the original order dedicating the road,
or the plat describing the road.
¶ 111 The Kloses objected to the township’s plans, claiming that they owned by
warranty deed the road right-of-ways at issue. The Kloses filed an action for
declaratory relief, seeking an order confirming their fee simple title to the road
right-of-ways for North 4550th Road and East 10th Road in Meriden Township. On
the township’s motion, the circuit court dismissed the complaint and denied the
Kloses’ motion to amend. The court found that the 1856 road dedication was valid
and sufficient.
¶ 112 The Kloses appealed. The appellate court held that the township’s claim to the
roads failed because the township had not established a valid dedication of the
roads. The court found that the documents offered by the township were incomplete
and therefore insufficient to establish the dedication. Specifically, the court
determined that to satisfy the statutory requirements for a valid dedication, the
township was required to provide the petition requesting permission to build the
roads; a surveyor’s report, survey, and plat; and the road commission’s order
granting the dedication. Klose v. Mende, 329 Ill. App. 3d 543, 546-47 (2001). The
court found that the township had acquired a prescriptive easement for the portion
of the roads in use at the time of the action. However, that easement would not
allow the township to take an extra five to six feet of roadway from the Kloses’
land. The appellate court vacated the circuit court’s dismissal order, and remanded
with directions that the circuit court enter an order establishing plaintiffs’ fee
simple title and the township’s prescriptive easement interest in the two roads. Id. at
548-49.
¶ 113 On remand, while various matters were pending in the circuit court, the
township filed a section 2-1401 petition to reopen proofs. The petition was based
on newly discovered documents including the original order dedicating the roads,
the original surveyor’s report and plat, and receipts from adjoining landowners
indicating the compensation paid for the taking of their land for the roads. The
circuit court granted the Kloses’ motion to dismiss the township’s 2-1401 petition
based on the petition’s failure to adequately assert due diligence. The township
filed an amended petition setting forth the township’s diligence efforts. Eventually
the township filed a second amended 2-1401 petition. The Kloses responded with
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an answer, defenses, and counterclaims. At the close of a hearing, the circuit court
granted the township’s section 2-1401 petition to reopen proofs.
¶ 114 The Kloses again appealed to the appellate court. The appellate court affirmed.
Klose v. Mende, 378 Ill. App. 3d 942 (2008). The appellate court agreed with the
circuit court that the township had satisfied the requisite elements for granting a
section 2-1401 petition. The court observed that the newly discovered evidence
consisted of the exact documents that the court found were necessary but lacking.
Most importantly, the appellate court stated: “Had the township known of their
existence and been able to present the documents during the original proceedings,
the trial court’s ruling in its favor would have been affirmed by this court.”
(Emphasis added.) Id. at 947.
¶ 115 In the case at bar, the court opines that plaintiffs “misread” Klose. My
colleagues in the majority view Klose as distinguishable and having “no
relevance,” as being “problematic,” and “unpersuasive.” Supra ¶¶ 65-66. I
disagree. Plaintiffs, like the township in Klose, had their judgment reversed on
appeal. Although this court reversed plaintiffs’ judgment, they filed their 2-1401
petition in the circuit court, as did the township in Klose, because the petition
attacks the dismissal order entered there and that is where the statute directs them to
file.
¶ 116 Further, plaintiffs by their section 2-1401 petition, brought to the circuit court’s
attention newly discovered evidence that the FTC never had any policy regarding
the disputed descriptors. In Klose, the circuit court found that, had the newly
discovered evidence been part of the record, the appellate court would not have
reversed the original judgment in the township’s favor. Likewise in the case at bar,
the appellate court found that, had the FTC’s nonpolicy been part of the record, this
court would not have reversed the original judgment in plaintiffs’ favor. A party
who receives a judgment in his or her favor should not have that judgment taken
away based on a reviewing court’s misapprehension of the law or facts. As in
Klose, the equitable considerations of section 2-1401 obviously apply here to
afford an effective remedy for a great injustice.
¶ 117 Klose is not the only appellate decision that upheld a trial court’s Rule 60 relief
from a judgment entered pursuant to an appellate court’s mandate, based on either a
subsequent change in the law (e.g., Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987)),
or newly discovered evidence (e.g., US West Communications, Inc. v. Arizona
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Dep’t of Revenue, 14 P.3d 292 (Ariz. 2000) (en banc)). Would my colleagues in the
majority dismiss all such decisions as distinguishable, having “no relevance,” or
being “problematic”? 7
¶ 118 This court has recognized that a section 2-1401 petition invokes the equitable
powers of a circuit court where necessary to prevent injustice. Warren County,
2015 IL 117783, ¶ 34 (quoting Ellman, 412 Ill. at 292). In a proceeding in equity, a
court is not bound by strict formulas, but may shape its remedy to meet the
demands of justice in every case, however unusual. Hoyne Savings & Loan Ass’n v.
Hare, 60 Ill. 2d 84, 90-91 (1974). Accordingly, in the case at bar, this court’s
conclusion that a lower court cannot grant section 2-1401 relief from a judgment
entered at the direction of a higher court is inconsistent with the equitable
foundation of section 2-1401 relief—to achieve fundamental fairness and
substantial justice.
¶ 119 Beside there being no impediment to the application of section 2-1401 to the
instant case, the facts here cry out for equitable relief. “Courts of equity may, and
frequently do, go much farther both to give and withhold relief in furtherance of the
public interest than they are accustomed to go when only private interests are
involved.” Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 552
(1937) (collecting cases); accord Thornton, Ltd. v. Rosewell, 72 Ill. 2d 399, 407
(1978); County of Du Page v. Henderson, 402 Ill. 179, 192 (1949). The fact that
both our national and state governments have recognized that smoking is a public
health hazard “is in itself a declaration of public interest and policy which should be
persuasive in inducing courts to give relief.” Virginian Ry., 300 U.S. at 552.
¶ 120 In their amici brief, nonprofit public health organizations, medical societies,
and former United States Surgeons General inform us of the gravity of defendant’s
actions in deceptively branding and selling its so-called “light” or “low tar and
nicotine” cigarettes, and the staggering effect of defendant’s deception on the
public interest.
¶ 121 In his 2014 Report, the United States Surgeon General found that cigarette
smoking is the leading cause of preventable disease and death in the United States;
that cigarette smoking and tobacco smoke exposure cause at least 480,000
7
Since this court has held that it would be unconstitutional for a trial court to grant relief from a
judgment entered at the direction of a higher court (supra ¶ 38), are these decisions constitutionally
invalid as well?
- 37 -
premature deaths annually in the United States; and that there are at least 16 million
people currently suffering from diseases caused by smoking. Surgeon General
Report, The Health Consequences of Smoking—50 Years of Progress 659, 678,
870 (U.S. Dept. of Health & Human Services, 2014). Despite the overwhelming
evidence that smoking kills and debilitates people, over 42 million adults—roughly
one in five—in the United States currently smoke cigarettes. See Current Cigarette
Smoking Among Adults—United States, 2005-2013, Morbidity & Mortality Wkly.
Rep. (Centers for Disease Control & Prevention, Atlanta, Ga.) Nov. 28, 2014, at
1111. The Centers for Disease Control estimate that 1.8 million Illinois adults age
18 and older smoke, as well as 14.1% of Illinois high school students. See Centers
for Disease Control & Prevention, Behavior Risk Factor Surveillance System,
http://www.cdc.gov/brfss/index.htm (last visited Mar. 3, 2015); Centers for
Disease Control Prevention, Youth Online: High School YRBS,
http://nccd.cdc.gov/youthonline/App/Default.aspx (last visited Mar. 3, 2015); U.S.
Census Bureau, Quick Facts: Illinois, http://quickfacts.census.gov/qfd/states/
17000.html (last visited Mar. 3, 2015).
¶ 122 The General Assembly has been blunt in establishing the public policy of this
state regarding smoking. For example, in enacting the Illinois Clean Public
Elevator Air Act in 1989, the legislature found that “tobacco smoke is annoying,
harmful and dangerous to human beings and a hazard to public health.” 410 ILCS
83/2 (West 2012). Also, the Smoke Free Illinois Act, enacted in 2007, included the
following findings:
“The General Assembly finds that tobacco smoke is a harmful and
dangerous carcinogen to human beings and a hazard to public health.
Secondhand tobacco smoke causes at least 65,000 deaths each year from heart
disease and lung cancer according to the National Cancer Institute. Secondhand
tobacco smoke causes heart disease, stroke, cancer, sudden infant death
syndrome, low-birth-weight in infants, asthma and exacerbation of asthma,
bronchitis and pneumonia in children and adults. *** Illinois workers exposed
to secondhand tobacco smoke are at increased risk of premature death. An
estimated 2,900 Illinois citizens die each year from exposure to secondhand
tobacco smoke.
The General Assembly also finds that the United States Surgeon General’s
2006 report has determined that there is no risk-free level of exposure to
secondhand smoke; the scientific evidence that secondhand smoke causes
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serious diseases, including lung cancer, heart disease, and respiratory illnesses
such as bronchitis and asthma, is massive and conclusive ***.” 410 ILCS 82/5
(West 2012).
¶ 123 In the context of this recognized public health epidemic, defendant’s
misconduct was appalling. The circuit court’s findings in the original trial, which
no reviewing court has disturbed, were supported by the following evidence.
defendant’s own scientists did not believe that “light” cigarettes delivered less tar
and nicotine to human smokers as opposed to testing machines. Defendant
concealed this knowledge from the public and the health community. Further, when
defendant’s secret tests showed that “light” cigarettes produced tar that was higher
in toxic substances and more mutagenic than the tar from regular cigarettes,
defendant shut down its secret testing, concealed the test results, and continued to
market its “light” cigarettes as a healthier alternative to regular cigarettes. Price v.
Philip Morris Inc., No. 00-L-112 ¶¶ 55-58, 64-66, 70-74 (Cir. Ct. Madison Co.).
The circuit court found as follows. There was no credible evidence to support
defendant’s representations that Marlboro Lights and Cambridge Lights delivered
lower tar and nicotine or were safer than regular Marlboros. Evidence supported the
conclusion that Lights were actually more harmful and hazardous than their regular
counterparts. Moreover, defendant was aware of the increased harm from these
light cigarettes based on its own scientific testing. Despite this knowledge,
defendant perpetuated and nurtured the false perception of “healthier smoking,”
which led existing smokers to delay quitting, and motivated more nonsmokers to
begin smoking. Id. ¶¶ 69-70.
¶ 124 Indeed, defendant has already been found liable in another jurisdiction for
committing the same misconduct. In United States v. Philip Morris USA, Inc., 449
F. Supp. 2d 1 (D.D.C. 2006), aff’d in part and vacated in part, 566 F.3d 1095 (D.C.
Cir. 2009) (per curiam) (Philip Morris), the federal government sued defendant
and other major tobacco companies in 1999 pursuant to the Racketeer Influenced
and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1961-1968 (1994)). The
government charged that the tobacco companies violated the RICO statute by
intentionally conspiring to deceive the American public regarding the health effects
of smoking cigarettes through their marketing practices. As summarized by the
court of appeals, the government alleged that the defendants fraudulently denied
that smoking causes cancer and emphysema, that secondhand smoke causes lung
cancer and endangers children, that nicotine is an addictive drug and the defendants
manipulated it to sustain addiction, that light and low-tar cigarettes are not less
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harmful than regular cigarettes, and that the defendants intentionally marketed to
youth. The government also alleged that the defendants concealed evidence and
destroyed documents to hide the dangers of smoking and protect themselves in
litigation. Philip Morris, 566 F.3d at 1106 (citing 449 F. Supp. 2d at 27).
¶ 125 In August 2006, the district court entered final judgment against the defendants,
finding that they violated RICO. 449 F. Supp. 2d at 851, 901. As summarized by
the court of appeals:
“The [district] court found that Defendants engaged in a scheme to defraud
smokers and potential smokers by (1) falsely denying the adverse health effects
of smoking, id. at 854; (2) falsely denying that nicotine and smoking are
addictive, id. at 856; (3) falsely denying that they manipulated cigarette design
and composition so as to assure nicotine delivery levels that create and sustain
addiction, id. at 858; (4) falsely representing that light and low tar cigarettes
deliver less nicotine and tar and therefore present fewer health risks than full
flavor cigarettes, id. at 859; (5) falsely denying that they market to youth, id. at
861; (6) falsely denying that secondhand smoke causes disease, id. at 864; and
(7) suppressing documents, information, and research to prevent the public
from learning the truth about these subjects and to avoid or limit liability in
litigation, id. at 866.” 566 F.3d at 1108.
The court of appeals affirmed “the district court’s judgment of liability in its
entirety.” Id. at 1150.
¶ 126 Section 2-1401 relief from judgment is grounded in the equitable power of a
circuit court to prevent injustice. As I have demonstrated, the unusual procedural
background of the instant case presents no reasonable impediment to the
application of section 2-1401 relief. Further, equitable relief is called for here in
furtherance of a government-recognized public health crisis. Defendant has
repeatedly been found liable for deceiving the public regarding this public health
hazard, profoundly burdening our national health care system. Defendant
“marketed and sold their lethal product with zeal, with deception, with a
single-minded focus on their financial success, and without regard for the human
tragedy or social costs that success exacted.” Philip Morris, 449 F. Supp. 2d at 28.
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¶ 127 III. CONCLUSION
¶ 128 “Doing justice under the law is this court’s highest obligation. Through section
2-1401, the General Assembly has provided us with a versatile and effective means
of pursuing justice in cases such as this.” Lawton, 212 Ill. 2d at 299. In construing
any statute, a court presumes that the legislature did not intend to enact a statute that
leads to absurdity, injustice, or inconvenience. Slepicka v. Illinois Department of
Public Health, 2014 IL 116927, ¶ 15; People ex rel. Sherman v. Cryns, 203 Ill. 2d
264, 280 (2003).
¶ 129 Admittedly, this is a rare case. However, rather than doing justice under the law
as the legislature intended through section 2-1401, this court views Price as
immunizing the circuit court’s dismissal order, which this court directed, from
section 2-1401 relief. To reach this result, my colleagues strain to read exceptions,
limitations, or conditions into the unconditional language of section 2-1401. My
colleagues resort to: an unpersuasive comparison of section 2-1401 with Federal
Rule of Civil Procedure 60(b), an irrelevant historical discussion of a common-law
antecedent of section 2-1401, the needless elevation of the doctrine of vertical stare
decisis to constitutional status, and the rejection of appellate decisions that have
upheld a trial court’s relief from a judgment entered pursuant to an appellate court’s
mandate.
¶ 130 If viewed in isolation, this court’s analysis in the instant appeal would be
disturbing. However, when viewed in the wider context of the regretful history of
this case, the court’s holding should not be surprising. In our original Price
decision, the manner in which this court reversed plaintiffs’ judgment led me to the
troubling conclusion that this court had “become increasingly desensitized to the
interests of the average Illinois consumer,” and that the decision would “send a
chill wind over consumer protection.” 219 Ill. 2d at 327 (Freeman, J., dissenting,
joined by Kilbride, J.). The court denied plaintiffs’ petition for rehearing even
though plaintiffs raised significant points which the court overlooked or
misapprehended. Id. at 337 (Freeman, J., dissenting, joined by Kilbride, J.).
¶ 131 Further, this court entered a supervisory order directing the circuit court to
dismiss plaintiffs’ section 2-1203 postjudgment motion, in which plaintiffs
attempted to bring to the circuit court’s attention newly discovered evidence that
was not available at the time of trial, changes in the law, or errors in the court’s
previous application of existing law. I dissented from the entry of the supervisory
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order, stating that “it quickly and quietly closes the book on a case that a majority of
this court, I am sure, would rather forget.” 226 Ill. 2d at 425 (Freeman, J.,
dissenting, joined by Kilbride, J.).
¶ 132 In the case at bar, although the court’s analysis is neither quick nor quiet, it
remains erroneous. I dissent.
¶ 133 JUSTICE KILBRIDE joins in this dissent.
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